Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts

By Miller, Eric S. | The Yale Law Journal, June 1995 | Go to article overview

Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts


Miller, Eric S., The Yale Law Journal


In his first judicial act, Daniel, who would become one of the Hebrew Bible's most respected judges, saved an innocent woman from a death sentence.(1) Susanna, wife of the wealthy and respected Joakim, went to her garden to bathe. In the garden, two lecherous elders trapped her alone and demanded that she have sex with them. If she refused, they threatened to accuse her publicly of having sex with a man other than her husband, a crime whose punishment was death. Susanna did refuse, and the next day the elders accused her of adultery, telling the judges that they saw a young man lying with her in her garden. The judges believed the elders and sentenced Susanna to death.

As Susanna was being led to her execution, Daniel cried out, "Are you such fools, O Israelites! To condemn a woman of Israel without ... clear evidence?"(2) Questioning the elders separately, Daniel asked each, "[U]nder which tree did you see them together?"(3) One elder answered, "Under a mastic tree";(4) the other answered, "Under an oak."(5) On the basis of this lack of agreement, Susanna was freed. "Thus was innocent blood spared that day.... And from that day onward Daniel was greatly esteemed by the people."(6)

In modem criminal procedure terminology, Daniel was confronted with a problem of verdict specificity. To Daniel, a determination that the accused was guilty of the crime charged was not enough. Instead, he demanded "clear evidence" of how the crime was committed. Without such evidence, Daniel said, the judges were "passing unjust sentences" and "condemning the innocent."(7)

Like Daniel, the United States Constitution demands a certain level of verdict specificity. The Sixth Amendment requires that convicting jurors in federal criminal trials be unanimous not solely as to the ultimate question of guilt or innocence, but also as to the principal factual elements of the crime charged. However, the recent advent of the compound-complex criminal statute, with its novel definitions of crime and its elements, has strained the limits of criminal procedure and effectively taken the right to a unanimous verdict away from a large and growing class of federal criminal defendants.

Compound-complex criminal statutes generally target large-scale criminal activity by requiring that a defendant have engaged in a "pattern" or "series" of criminal conduct. The "pattern" or "series" must consist, in turn, of a specific number of predicate acts defined elsewhere in the criminal code. The most difficult challenge raised by compound-complex statutes is one of verdict specificity. In order to convict a defendant of a compound-complex crime, must a jury unanimously agree upon exactly which acts the defendant committed? Or need the jury only unanimously agree that the defendant committed a certain number of such acts, without specifically agreeing on their identity? This question has split the circuit courts, making it particularly appropriate for review under the Constitution.

The Constitution does speak to questions of jury unanimity and verdict specificity. The Sixth Amendment requires unanimity as to the principal factual elements underlying a specified offense.(8) In addition, the Due Process Clause of the Fifth Amendment constrains Congress' ability to define the elements of a criminal offense.9 Unfortunately, courts have been unable to construct from these constitutional rules an analytical framework through which to evaluate verdict specificity problems in compound-complex criminal statutes. Nearly every court addressing the question of jury unanimity as to predicate acts has analyzed it solely in light of the Sixth Amendment's guarantee of unanimity as to the principal elements of an offense. Sixth Amendment analysis, however, does little more than frame the debate; it does not address the central question of what constitutes a principal element. The due process constraints on defining criminal activity, while proposing an answer to that question, were only recently articulated by the Supreme Court in the context of a first-degree murder statute;(10) to date, only one court has analyzed compound-complex predicate acts in light of these constraints. …

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